UN Reform and the Future of International Law

by Seth Weinberger

In yesterday’s New York Times, we find an article in which UN Secretary-General Kofi Annan bemoans the difficult year the UN has had in 2005. In particular, Annan gripes about the difficulties in creating a new Human Rights Council that will not have to seat notorious human rights violators like Sudan, the grueling ordeal of the oil-for-food scandal, and the problems the UN is having in passing its budget. Relatedly, in today’s Times, we read that while talks between the EU-3 and Iran about Iran’s nuclear program are resuming, there is little hope for significant progress. The main obstacles here are the resistance of Russia and China to referring the matter to the UN Security Council and, of course, Iran’s insistence on its right to develop an indigenous nuclear program that includes enrichment technology.

The common thread, and the largest problem in the development of meaningful and effective international law, is the problem of sovereignty. The UN was created in the aftermath of World War II with two main purposes: the prevention of large-scale inter-state conflict and the protection and promotion of state sovereignty (especially in the wake of the demise of the European colonial powers). Now, however, the purpose of the UN is changing. Inter-state war is no longer perceived as the primary threat to international security, in a large part due to the overwhelming dominance of American military and political hegemony. “Human security” issues like human rights and the prevention of genocide have risen on the security hierarchy, and the “hard” security issues that do exist, like terrorism or proliferation, have a much larger intra-state dimension to them. The problem is that the UN is not well suited to dealing with internal issues. If Russia and China refuse to allow the IAEA to refer Iran to the Security Council, the UN will be unable to act. If enough developing countries resist making membership on UN committees like the Human Rights Council contingent on meeting certain standards (and it’s also likely that Russia and China would object as well), the UN will be unable to act.

What can be done to make international law more credible, enforceable, and relevant? In the short- to near-future, it’s almost impossible to imagine any serious reform transforming the UN into a body capable of handling these kind of issues. While some people may dream of a truly international body that can enforce international law, perhaps it may be time to give that dream up. International law is at its best when it works through inducements (like the WTO) rather than coercion (like UN sanctions). Yes, the WTO has a punishment mechanism, but it really works by promoting cooperation in order to obtain long-term benefits of free trade and open markets. The UN has little to offer countries in order to get compliance on thorny and truly important issues, like nuclear proliferation or genocide. Inducements work best between like-minded countries that see common ground in their national interests. So, perhaps the international system should become bifurcated. The UN can continue to deal with the global issues at which it actually does reasonably well, such as the WHO or UNICEF, and could remain as a global forum to provide peacekeeping and prevent interstate war. Those countries interested in expanding the scope and power of international law could set up their own organization, like the EU, WTO, or NATO, in which sovereignty is curtailed to a greater degree and members gain serious benefits as a payment for cooperation. Of course, this is exceedingly unlikely, but I just don’t ever see the UN, hobbled by sovereignty and vetoes, as being effective.

http://opiniojuris.org/2005/12/22/un-reform-and-the-future-of-international-law/

4 Responses

  1. Interesting idea… I’ve always thought that the promise of reward was much more powerful than the threat of punishment.

    What kinds of benefits could such a group offer its members, though? By all rights, any nation that joins such an organization accepts the possibility that their affairs will be legally interferred with. What reward by membership could offset such a fundamental intrusion?

  2. Agree that sovereignty is the issue, and that it has been dictated by the post-colonial construction of an international community, but the problem looms right under your nose and you don’t point it out. Sovereigny, particularly the enforcement and protection of post-colonial borders, is a concept that is relatively new to the world (dating back to the end of colonialism and the end of the British Empire, which was still in progress through the 1970s).

    To many of these states, particularly in Africa, the term “failed state” has been applied by the US State Dept. Internal structures are at best weak, preserving power imbalances between rich and poor in some cases, minority tribes and majority tribes in other cases (Syria, Kenya, Zimbabawe), and colonial political elites and weaker agrarian communities within the state. Despite these internal imbalances, if not crippling structures requiring external international aid either economically or in the form of peacekeeping, these states have been preserved as is since independence by uti possidetis juris, which upholds the borders as they were at teh time of independence and secures them by assuming they reflect an act of self-determination. One solution presented by this definition is to allow further acts of self-determination. but this isn’t permitted under international law, both by UN Resolution and by customary international law. The fear is simply chaos – allow one tribe in Africa to declare independence and others will follow suit.

    but beyond chaos, and the point raised in this piece, is that the very existence of the UN, and its resolutions preserving current borders (e.g., Quebec and Canada) is that it assumes a utopia was created after WWII. that is, a system of peaceful nation-states finally came into existence. Any questioning of borders immediately questions the very essence of the UN – if one member state is questioned and not protected, what happens to the other weaker ones?

    international law could become more relevant if it was applied to borders with a bit more imagination. Clearly the preservation of some of these borders has resulted in some monstrous outcomes, Zimbabwe and Iran in particular. Uti possidetis juris and self-determination should not be hard and fast rules. Involve the UN as a place of discussion and develop an arm to apply innovative solutions (e.g., mini supranational entities, frontier solutions where borders divide tribes historically (eg between Cameroon and Nigeria at the Bakissi Peninsula).

    International law is a source of innovation and flexibility – current thinking on sovereignty, especially borders, is rigid in a way that seems to go against the tide of progress that has been, and should continue to be, progressive international legal thinking.

    How many of these states truly function credibly and without need of external support to prevent internal chaos?

  3. Aevionknight: I’m not exactly sure what I could suggest as the “carrot” but two things come to mind. One is protection. It is the US security umbrella that allowed France and Germany to escape the pressures of the security dilemma and begin the process of creating what is now the EU. The second would be economic, and free trade in particular. With the repeated caveat that this is exceedingly utopian and unlikely, something like a merger of NATO and the WTO could be possible, that then expanded its domain beyond trade and defense, into other areas that ensured the promotion of international law. In short, a larger EU.

    A.R.: First, I’m not clear on what you mean that sovereignty is a relatively new concept, as the modern state system with sovereignty as its basic tenet dates back to the Peace of Westphalia in 1648. However, you’re right to argue that a large part of today’s problem, particularly in Africa, is a result of colonial legacies where sovereign borders were drawn up in accordance with natural boundaries and ignored tribal, linguistic, or racial differences. So, the UN and its emphasis on sovereignty finds itself protecting states that probably would be better off being broken up (Sudan, Rwanda). However, when it’s in the interest of the powerful states to do so, those concerns for sovereignty and preventing the fragmentation of a modern state get ignored. This is the case of Kosovo, which probably did, as Milosevic is claiming in his defense, fall into the category of a civil war.

    So, I stand by my point. So long as sovereignty is the major principle of the UN, it will never be able to effectively uphold international law. That doesn’t mean that it’s not worth upholding sovereignty, but the price of a stong international law is the erosion of state sovereignty, which would entail a host of consequences, both seen and unforeseen.

  4. In response, first, i still believe sovereignty is a relatively new concept – it may be old for states generated directly (European nations) or indirectly (the U.S.) out of the Westphalian system. But for the rest of the world, particularly the post-colonial and post-Cold War countries, which collectively number over 100, sovereignty is a new concept because statehood is a new concept. This was especially evident in Ukraine: the Ukrainian revolution was as much about establishing sovereignty proper as it was about divorcing itself from the burden of Soviet history.

    Second, I still feel your point should be argued differently. i agree the UN is not suited to dealing with internal issues – many of the violent issues have required military responses where the use of force was necessary to protect (rwanda, Srebenica). Many of these problems, as you agree, were the consequence of post-colonial, and I would add post-Cold War borders (e.g., Yugoslavia), but that doesn’t mean that sovereignty requires erosion. Rather, the complexities and problems that the concept of sovereignty has provoked require more action at both the conceptual level and at the applicative level. Which is where I come out – let’s use the UN to be a conduit on these issues. Start small, renegotiate borders between two or three states where sovereignty clearly doesn’t matter, and use the UN as a governance mechanism to oversee the transition.

    This approach may seem to erode sovereignty, but really it’s addressing the problem head-on – sovereignty isn’t eroded, it’s reconsidered and rearranged. I believe that should be the approach.: don’t erode it, reconfigure it instead.

    I believe what you are focusing on isn’t an erosion in sovereignty per se; rather, it’s supranationalism – the idea that a collectivity and shared resources can better represent the interests of an individual state than the state can do itself. But this is happening not due to an erosion in sovereignty – rather, it’s due to the increasing election of individual states to represent their interests in such a manner. The EU is the obvious example, but the collectives you are finding in the WTO negotiations, the new trade and the increased momentum towards some for of African Union similar to the European Union – all point to collective efforts by sovereign nations. Concededly, this involves some sacrifice of sovereignty, and it’s at this point you and I differ. It’s not erosion, it’s sacrifice. there is no slippery slope here, as the word erosion implies. rather, it’s a process of building and adapting – in a nutshell, evolution.

    If you add everything up, sovereignty is still there, represented by the borders that we agree exist and remain, but states are looking elsewhere for power. this will only make the UN irrelevant if it cannot adapt to the trend of supranationalism. And the UN’s inability to adapt, as I’ve pointed out before, may be the problem.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.